Under New York law, when a married person dies, the surviving spouse has a “right of election,” a statutory right to receive either $50,000 or 1/3rd of the estate, whichever is larger. However, as set forth in an opinion from the New York Appellate Division in 2010, that right can be jeopardized if there are concerns about the mental capacity of the decedent at the time of the marriage.

In Matter of Berk, 2010 NY Slip Op 02139 [71AD3d883], testimony indicated that the deceased, Irving Berk, had executed a will in 1982, naming his two sons and four grandchildren as sole beneficiaries. Some 15 years later, Judy Wang was hired as his permanent caretaker, as he was wheelchair bound and his memory was failing. Wang cared for him for the nearly a decade, as his physical and mental health declined. According to witnesses, by 2005 he had difficulty recognizing his sons when they came to visit. Nonetheless, Wang and Berk were married in June, 2005, in a civil service, when he was 99 and she was 47. Neither party wore a wedding ring and the marriage was not disclosed to Berk’s sons until the day before his funeral, in June, 2006. As Berk had not amended his will to include any provision for Wang, she filed a petition seeking to exercise her right to the statutory elective share as his legal spouse.

The trial court found that Wang had met the requirements of the statute by demonstrating that she was Berk’s surviving spouse at the time of his death. Because Wang had met the statutory test, the court determined that there were no facts that needed to be determined by a jury and issued a summary judgment ruling in Wang’s favor.

Berk’s sons appealed the summary judgment ruling, arguing that the marriage was a sham. Under the spousal election law, the election may be invalidated if the marriage was annulled. The sons argued that, because of undue influence and fraud, the marriage could not be legally binding. The appellate court overturned the summary judgment, finding that a jury could in fact determine whether Wang knew that Berk lacked the mental capacity to enter into a marriage and had deliberately taken unfair advantage of him by marrying him. The court also concluded that, should the jury find that Wang had wrongfully married Berk with the intention of securing a portion of his estate, the marriage could be ruled invalid and the spousal election could be denied.

The appellate court’s decision makes it clear that the spousal right of election may be at risk when the deceased has Alzheimers’ or some form of dementia. At the Law Office of Bonnie Lawston, we can protect your rights, whether you seek to exercise the right of election or want to prevent someone from wrongfully asserting a spousal right of election.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.